The Oak Bluffs select board has augmented five sets of executive session minutes following an Open Meeting Law (OML) complaint filed by the Martha’s Vineyard Times and a subsequent violation finding by the Massachusetts attorney general’s office.
The minutes pertain to an Oak Bluffs Police Department rifle that disappeared and then reappeared months later, after a private investigator was hired to look into the matter. The private investigator, Pembroke-based Paul L’Italien, produced a report, executive summary, supplemental report, and supporting documents, including interview transcripts. L’Italien’s investigation found Sgt. Michael Marchand, who ultimately resigned, failed to adhere to a policy that demands officers “take a reasonable precaution to insure that weapons issued to them are protected from loss, misuse, or theft.” The weapon central to the investigation, a Bushmaster M-4 rifle, was found missing in October 2021 and was recovered in December 2021. How and when it had gone, and how and when it came back to the police department, were among the mysteries that persisted through to the close of L’Italien’s investigation.
The select board convened five executive session meetings focused on the rifle investigation and Sgt. Marchand. The board initially rejected The Times’ allegation that minutes for those meetings were insufficiently detailed. But the board later changed its stance and redrafted the minutes with more detail, after the attorney general’s Division of Open Government issued an order to do so. On Sept. 14, the board released the updated minutes to The Times and the attorney general’s office. In a cover letter to the Division of Open Government, select board vice chair Ryan Ruley described the augmentations to the minutes as covering “additional attendees,” and providing more summary, detail of board discussion, and lists of documents.
Ruley’s letter states “the board feels that an appropriate, satisfactory, and good-faith effort to resolve this issue has been effected and that no further action from the Board is required.”
The augmented minutes — Nov. 24, 2021, Dec. 3, 2021, Dec. 14, 2021, Dec. 28, 2021, and Jan. 11, 2022 — sport new content in bold. That new content provides a higher degree of clarity than prior minute iterations had. The minutes also provide a previously absent, albeit generalized, idea of questions and concerns the board had. For example, the Nov. 24 minutes state in part:
- Why was the missing firearm not discovered earlier?
- Why were the police general orders not being adhered to?
- Why were the police chief and Sgt. Marchand’s weapons the only two not physically
checked each year?
- Who certified that all weapons were accounted for during the annual certification?
- What kind of credibility issues does this create?
- What kind of leadership example does this set?
The minutes don’t offer any window into concerns or remarks from any individual board members. Notably, the minutes don’t reflect board alarm in general, or by any board member specifically, that a rifle was unaccounted for, nor do the minutes show any surprise or curiosity from any individual board members, or from the board as a whole, regarding the unexplained reappearance of the rifle. The redraft of Dec. 28 minutes contains the unusual inclusion of all-capitalized words. Such wording in digital communication generally denotes shouting. These all-capital letter words appear as part of arguments for why Sgt. Marchand didn’t meet the threshold for status as a “whistleblower.”
- The situation was not an “emergency” as Sgt. Marchand waited THREE years to disclose any issues or problems relating to the procedures used to account for police-issued weapons
- Sgt. Marchand never made ANY complaint to either the police chief or town administrator regarding these supposed “issues”
- Sgt. Marchand was one of the individuals who created and was responsible for the
issue to begin with.
- There were no reasonable fears regarding physical harm as the result of the disclosure
- The disclosure was not for the purpose of providing evidence of a perceived “crime.” The good faith of the disclosure was questionable
The Dec. 28 minutes go on to state, “Furthermore, the board noted that as the weapon was now ‘found,’ numerous statements from Sgt. Marchand in prior statements were inconsistent and/or untrue. In addition, the integrity of the ENTIRE police department was now in question as either an ineffective search was made in prior searches, or someone returned it without disclosing that it had been in their possession the entire time.”
The minutes don’t make it clear how the board learned the rifle had been recovered. However, L’Italien’s supplemental report, which announces and explores the recovery of the rifle, is listed on one set of minutes.
Although the minutes were redrafted in part to include a list of documents used in a given meeting, some documents, such as a statement of facts and transcripts mentioned in the Nov. 24 redrafted minutes, aren’t listed.
The minutes make no mention of a key individual in the investigation, Michael Maliff, an officer to whom the rifle was reportedly issued for use in academy training. In his supplemental report, L’Italien wrote that it remained unknown who issued Maliff the rifle and when, unknown how the rifle traveled off the Vineyard, unknown how long Maliff may have stored it off-Island, unknown how the rifle came back on-Island, and unknown who received the rifle at the department, and when.
The rifle was discovered in the basement of the police station — ”under some large bags in a room which had been searched in October 2021, when the rifle was first reported missing.”
L’Italien’s report also states, “The patrol rifle was found to be in poor condition with regards to its cleanliness. There was dirt, rust, mold, and cobwebs or hair on the surface of the rifle. There was a rifle strap inside the case which had the name ‘Maliff’ written on it in white lettering. There was also mold and dirt on the strap.”
Marchand didn’t immediately respond to a request for comment. Maliff couldn’t be immediately reached at the Oak Bluffs Police Station. Ruley didn’t respond to multiple calls and a text message. Select board members Gail Barmakian, Emma Green-Beach, Jason Balboni, and Brian Packish didn’t immediately respond to calls seeking comment.
When asked on Monday if he drafted the augmented executive session minutes, attorney Jack Collins, who played an integral role in legal aspects of the whole affair, said, “Did I give any comments? Sure.”
However, Collins said he couldn’t immediately speak to the extent of his involvement with crafting the minutes, and whether suggestions he may have given were actually used.
Ok Kozak, on your mark,…get set,…GO!!!!
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